Campbell v. Baltimore & Ohio Railroad, 58 Pa. Super. 241

Campbell v. Baltimore & Ohio Railroad

58 Pa. Super. 241

| Pa. Super. Ct. | 1914

Opinion by

Rice, P. J.,

It is a well-settled rule of law, which the court called to the jury’s attention in a clear, adequate, and impartial charge, that, in an action against a railroad company to recover damages for loss by fire, no presumption of negligence arises simply from the fact that the defendant’s locomotive communicated fire to the plaintiff’s premises; the plaintiff must go further and show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his premises, but that they were emitted by reason of the defendant’s negligence. The principal question raised by the appellant is, whether the court should have given binding direction in its favor, or, failing in that, should have entered judgment in its favor non obstante veredicto upon the ground that there was no proof in the case that the defendant was negligent in the equipment of its engine or that its servants were negligent in the operation of it.

1. The evidence relied on to establish the defendant’s negligence was: first, the testimony of eyewitnesses that sparks emitted from the defendant’s locomotive caused the fire; second, the testimony of one of these witnesses, John Bowser, as to the size of the sparks; third, the testimony of witnesses as to other fires set along the line of the railroad by sparks emitted from the same locomotive on the same trip; fourth, testimony of a witness, competent to give such testimony, as to the size of mesh of standard spark arresters used on railroad locomotives, and as to the impossibility of a locomotive equipped with a spark arrester of the standard size, in good condition, throwing out sparks of the size testified to by at least one of the witnesses. We cannot agree with appellant’s counsel that the testimony of John Bowser, that he saw red-hot sparks of the size of a ten-cent piece or larger being emitted from the locomotive on the afternoon of a clear day, must be rejected as contrary to well-known natural laws. Iiis *245credibility, like that of all the witnesses, was for the jury. The facts testified to by them, if believed by the jury, formed a sufficient legal basis for reasonable inference that the fire was caused by the defendant’s negligence, and, therefore, the court could not do otherwise than submit the question to the jury, even though the evidence adduced by the defendant, if believed, was sufficient to defeat the action. The pertinent principle was fully considered in John Hancock Ice Co. v. Perkiomen R. R. Co., 224 Pa. 74, and was thus stated by Justice Mestrezat: “The basis of the- action in such cases is negligence, and the burden of establishing it is upon the plaintiff. He cannot rely upon a presumption, as in the states already referred to where that doctrine prevails, but he must introduce evidence, direct or circumstantial, from which the jury may find that the defendant company’s negligence caused the fire. When, therefore, such evidence is introduced and the court holds it sufficient to go to the jury for the purpose of showing negligence, it is not a presumption of law that the defendant is called upon to meet, but affirmative evidence showing the defendant’s negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is a conflict of evidence and that necessarily sends the case to the jury.” Therefore, the court did not err in refusing to withdraw the case from the jury or in refusing the defendant’s motion for judgment non obstante veredicto.

2. The true rule is, that, in actions like the present, interest is not recoverable as such, and the allowance of compensation for delay depends on the circumstances and must, therefore, be determined by the jury: Richards v. Citizens’ Natural Gas Co., 130 Pa. 37. In view of the fact that the plaintiff made no demand prior to bringing this suit, which was two years after the fire, there was particular reason why the question of allowing compensation for detention, as well as the amount of the compensation, should be left to the determina-. *246tion of the jury. But the instructions embraced in the second assignment of error, whether so intended by the court or not, might well be understood by the jury as meaning that the plaintiff, if entitled to recover at all, was entitled to recover such sum, in addition to the actual damages, as would compensate him for the detention of the money. They were in the nature of binding directions and therefore the court inadvertently went too far. But assuming that the jury allowed damages for detention at the rate of six per cent per annum, which is as far as they could go under the charge, the amount would not exceed $154. As the plaintiff, by paper filed, has expressly signified his desire to remit this rather than have the controversy further prolonged, the judgment will not be reversed, but will be reduced, in accordance with the practice followed in Richards v. Citizens’ Natural Gas Co., supra; Emerson v. Schoonmaker, 135 Pa. 437; Shevalier v. Postal Teleg. Co., 22 Pa. Superior Ct. 506, and other cases.

In accordance with the written stipulation filed by the plaintiff, the judgment is reduced nunc pro tunc as of February 11, 1913, from $954 to $800, and is thereupon affirmed.